DEPARTMENT OF REVENUE VS. C.M.J.

MARSHALL, C.J. This case concerns an order imposed by a Probate and Family Court judge on the defendant, a co-recipient of Transitional Aid to Families with Dependent Children (TAFDC). The order requires the defendant to pay child support to the Department of Revenue (DOR), acting on behalf of the mother of the defendant's children, A.M.R., and the Department

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of Transitional Assistance (DTA). [Note 1] On appeal the parties both agree on the result sought - the vacating of the child support order. The appeal consequently places both parties in the unusual posture of standing together on the same side of the argument, both ranked against the judicial order and the rationale behind it.

A.M.R., the defendant, and their three children receive TAFDC benefits. [Note 2] Under State law child support payments from a parent (typically absent [Note 3]) are paid to the DTA as partial reimbursement for the TAFDC benefits paid to assist his or her

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children. See G. L. c. 119A, s. 12 (b). See also 42 U.S.C. s. 657(b)(2) (1994). What makes this case unusual, and what has provoked this appeal, is that the defendant is not an absent father, but rather lives with and has always supported his children. Consequently, the judge's order for child support, paid out of the household income to the DTA, has the effect of reducing dramatically the income of the household where the children live. It is a child support order that effectively reduces support for the children who ostensibly were to benefit from it. [Note 4]

The defendant appealed from both the initial April, 1998, order and the amended order of November, 1998, based on a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), [Note 5] and, as noted, the DOR is also arguing against the orders. The appeals were consolidated. We transferred the case on our own motion. We agree with the defendant and the DOR and vacate the judge's April 2, 1998, order as amended.

1. Background. The defendant and A.M.R. have lived together since 1990, except for a short period in 1996. They live with their three children, three through five years old at the time of the April, 1998, order. The uncontested evidence is that the

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defendant has always contributed to his children's support. The defendant has medical problems connected to a knee condition and is frequently unemployed or underemployed. In April, 1998, he earned only $282.76 and his household was eligible for TAFDC benefits because its total income did not exceed TAFDC eligibility levels. [Note 6] There is no evidence that the defendant has not availed himself of every opportunity to work.

The Probate Court proceedings concerning the defendant began April 14, 1997, when the DOR, as the subrogee of the DTA, [Note 7] sought to establish officially the paternity of his three children. [Note 8] There was no claim that the defendant had ever denied paternity of his three children; they bore the defendant's surname. As the DOR acknowledged before this court, it had reason to establish the defendant's paternity, so that in the event he ever left his family, the DOR would be in a position to seek child support from him. See 42 U.S.C. s. 654(4)(A) (1994)

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(requiring State plan for child support enforcement to provide services relating to establishment of paternity). After a hearing on May 21, 1997, the judge adjudicated the defendant the father of the children, and ordered him to notify the DOR and file a financial statement on securing employment and to report to the family service office (FSO) of the Probate Court with fifteen verified job applications per week. The order did not adjudicate custody of the children, who were living with both parents. The judge's May 21, 1997, order, docketed June 10, 1997, also stated that the issue of child support may be "marked up" by motion by any interested party.

On July 22, 1997, the FSO filed a civil contempt complaint against the defendant for violation of the May 21 order because he had not reported fifteen job applications every week. The contempt complaint did not assert that any child support order had been violated and did not seek entry of child support orders. In September, 1997, the defendant found employment. On April 1, 1998, A.M.R. reported to the Probate Court that the household was receiving $741 per month in TAFDC benefits, "depending on wages"; the defendant reported gross earnings of $260 a week from his job at that time. [Note 9]

On April 1, 1998, the judge conducted a brief hearing (the entire transcript is two and one-half pages long) concerning the contempt complaint, at which an attorney for the DOR, a representative of the FSO, A.M.R., pro se, and the defendant, pro se, were present. The judge and the DOR attorney had a brief exchange, in which the DOR attorney informed the judge that they were before the court solely due to the failure of the defendant to report to the FSO. When the judge suggested that the defendant would owe $80.60 under the child support guidelines,the DOR attorney responded that the defendant was part of the household and the DOR could not ask for child support because he was in the TAFDC grant. Before any questioning of either A.M.R. or the defendant, and without providing any opportunity for the defendant to speak on his own behalf, the judge ordered the defendant as follows: "You're to resign from the AFDC grant, sir, today and you're going to pay child support to the Department of Revenue on behalf of these children. . . . [Y]ou're no longer a part of that group, [so] file

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your discharge from that today. I'm going to establish [a child support] order of $80.60 a week and that's to be paid to the Department of Revenue. That will be by wage assignment . . . " [Note 10] The judge issued a written order to this effect that day, docketed on April 2, 1998. The judge did not make any ruling on the contempt complaint. According to the DOR, "[t]he court did not enter any order on the contempt complaints for failure to report job applications, having learned from the DOR attorney and the financial statement that [the defendant] was employed."

Later, on September 22, 1998, the judge entered "findings of fact and conclusions of law." The judge "found" that the defendant and A.M.R. had a combined monthly income of approximately $1,781, [Note 11] and "found" that their monthly expenses were $1,060. She concluded that the defendant, although living with his children in the household, was not a "custodial" parent, and thus could be ordered to pay child support. [Note 12] As part of her rationale for the judgment the judge stated that the household had "excess earnings," which "should be utilized, in the form of a child support order, to reimburse the coffers of the Department of Transitional Assistance." [Note 13] The judge reasoned that it was "against public policy for the Court to exempt a non-custodial parent, who has been adjudicated the father of

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minor children and is a wage earner, from paying child support solely because he has the same address as his children and their mother," and that the level of child support was appropriately set at the amount indicated by the application of the child support guidelines. The judge reasoned that the child support order was "in-line with the public policy expressed by G. L. c. 119A, s. 1, that children shall be maintained from the resources of their parents, thereby relieving the burden borne by the citizens of the Commonwealth."

There is evidence that dire financial consequences followed the order and the consequent garnishing of the defendant's paycheck. A.M.R., the defendant, and their three young children were unable to pay their rent and were in danger of being evicted. Their gas and electricity were maintained only by borrowing funds from A.M.R.'s grandmother. They were unable to purchase sufficient food for the household. Insurance for their car [Note 14] - needed to bring their daughter to medical appointments and to get the defendant to work when his knee is troubling him - was to be cancelled for nonpayment. Both A.M.R. and the defendant stated that their children were suffering due to the garnishing of Matos's wages under the child support order.

2. Discussion. We review child support orders, and decisions on motions for relief from judgment pursuant to rule 60(b), to determine if there has been a judicial abuse of discretion. See Department of Revenue v. G.W.A., 412 Mass. 435, 441 (1992); Kalenderian v. Marden, 46 Mass. App. Ct. 930, 931 (1999);

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Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429, 433, 435 (1979). We find merit in many of the arguments advanced by the defendant and the DOR for relief from the child support order and examine in detail only two we consider most significant. [Note 15]

a. Noncustodial parent. The judge premised the child support order on the defendant's being a "noncustodial" parent, a conclusion he challenges. The judge held that pursuant to G. L. c. 209C, s. 10 (b), the mother shall have custody of a child born out of wedlock, and this custody continues in the absence of an order or judgment of the Probate Court relative to custody. Because there had been no order from the Probate Court awarding the defendant legal or physical custody of his children, nor any petition by him for custody, the judge concluded that the defendant was not a custodial parent and was responsible for paying child support. See id. The judge's child support order is thus premised on an interpretation of G. L. c. 209C, s. 10 (b), that would presume that, '[i]n the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity," whereas the father so adjudicated would not be presumed to have or share custody, that is, would be "noncustodial," even though he lived with and supported his children. This is an erroneous interpretation of the law.

The resolution of custody questions "necessarily begins with the premise that parents have a natural right to the custody of their children." Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). See Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 185 (1977) ("Parents' claim to authority in their own household to direct the rearing of their children is basic to the structure of society; the custody, care and nurture of the

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child reside first in the parents"). See also Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979) (right to raise one's children is basic civil right; interests of parents in their relationship with their children are fundamental and constitutionally protected). Consequently, absent an adjudication of custody to the contrary, a parent, such as the defendant, living in the home with his minor children and supporting those children, is a custodial parent. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, supra.

The statutory provision the judge cites, G. L. c. 209C, s. 10 (b), does not change this conclusion for the following reasons. General Laws c. 209C, s. 10 (b), states: "Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage." Notably, the statutory provision does not state that an adjudicated father shall not have custody in the absence of such an order or judgment, nor does it employ the term "noncustodial" or apply this term to the father. See id.

To interpret the statute as the judge did, so as to presume that the mother, but not the father, shall have custody in such circumstances, would raise potential constitutional problems. See art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution. "[O]ur duty [is] to construe a statute in a way to avoid constitutional problems" if reasonable principles of interpretation permit. Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 406, 410 (1997). Consequently, we cannot construe this statutory provision to mean that a mother in such circumstances is a custodial parent, but a father is not.

We also agree with the defendant that the judge's interpretation runs counter to other Massachusetts and Federal statutes concerning child support enforcement and custody. See, e.g., 42 U.S.C. s. 669b(a) (1994) (regarding grants to programs to support "noncustodial parents' access to and visitation of their children"); G. L. c. 62D, s. 10A (commissioner authorized to enter into reciprocal agreements with other States to share lists of absent parents who owe support payments). Cf. G. L. c. 209C, s. 9 (court may order support for child aged eighteen

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to twenty-one who is domiciled in home of parent and dependent on that parent). Chapter 209C does not provide a definition of custody, but G. L. c. 208, s. 31, does. [Note 16] Section 31 provides that "sole legal custody" means that "one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development," and similarly, "sole physical custody" means that "a child shall reside with and be under the supervision of one parent, subject to reason able visitation by the other parent." These definitions of sole custody do not square readily with the circumstances here, where the defendant (father), and not solely A.M.R. (mother), has "the right and responsibility to make major decisions" regarding the children's welfare, and where the children "reside with and [are] under the supervision" of both. G. L. c. 208, s. 31. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). In addition, our courts have regularly applied the term "noncustodial" parent in circumstances where such a parent did not live with the other parent and the children, but rather had visitation with the children in many cases. See, e.g., Rosenberg v. Merida, 428 Mass. 182, 182-184 (1998) (parents separated; "noncustodial" father, living in Texas, granted visitation); Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 479, 486 (1997) ("noncustodial" parent had supervised visits, visitation rights); Leonardo v. Leonardo, 40 Mass. App. Ct. 572, 573, 576 (1996) ("noncustodial" parent had schedule to visit children); Canning v. Juskalian, 33 Mass. App. Ct. 202, 202-203, 209 (1992) ("non custodial" father resides in Massachusetts; mother's household is in California with child). Similarly, and significantly, we have said that the subrogation provision of G. L. c. 18, s. 21, concerning

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the right of the DTA to collect support payments owed to a welfare recipient, "protects the public from the burden of assuming the support obligations of an absent spouse who is able to pay" (emphasis added). Brady v. Brady, 380 Mass. 480, 485 (1980).

We also agree with the defendant that one practical outcome of letting the judge's flawed interpretation stand, presuming sole maternal custody and labeling the father "noncustodial" in such cases, would be that unmarried, cooperative, cohabiting fathers would need to seek custody determinations from the Probate Court to protect themselves - and, in cases such as this, their children - from child support orders. The judge's interpretation would therefore spur adjudication in a context in which parents have, thus far, understood that no adjudication was necessary - a result contrary to our interests in minimizing State interference in the protected zone of the family.

The judge cited G. L. c. 119A, s. 13 (c), and c. 209C, s. 9 (c), for the proposition that "[I]n any proceeding to establish or modify an amount of child support, the child support guidelines . . . shall apply." She further observed that, if the court finds that a parent is chargeable with the support of a child, the court must order the parent to pay towards that support, citing G. L. c. 209C, s. 9 (a).

The judge's implicit characterization of this as a proceeding to establish or modify child support was incorrect. The contempt complaint did not raise this issue, nor did the FSO or DOR at the hearing. To the contrary, at the hearing the DOR told the judge that they could not ask for child support in this case because Matos was in the household receiving the TAFDC grant. For similar reasons, the judge's invocation of the child support guidelines seems inappropriate in such a case. The guidelines state that "[t]here shall be a presumption that these guidelines apply . . . in all cases seeking the establishment or modification of a child support order" (emphasis added), Massachusetts Child Support Guidelines, issued by the Chief Administrative Justice of the Trial Court, something that was not taking place here.

Moreover, the child support guidelines cited by the judge contain language that should have cautioned the judge against their application, and against the issuance of a child support order, in such a case. The guidelines expressly refer to the "principles" of "meet[ing] the child's survival needs in the first instance" and of "protect[ing] a subsistence level of income of

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parents at the low end of the income range whether or not they are on public assistance." In addition, it is clear that the guidelines are intended to advance the best interests of the child, and that the guidelines may be departed from where they do not serve those best interests. See G. L. c. 209C, s.s. 9 (c), 20. Given the predictable impact of the child support order here, of reducing the family's income in direct contravention of these principles, invocation of the guidelines to support the order was inappropriate.

The guidelines also seem clearly intended for situations where the family has broken up or is on the verge of doing so, not those in which the family is intact and the father is directly supporting his children. They state, for example, as principles, " [t]o minimize the economic impact on the child of family breakup" and "to provide the standard of living the child would have enjoyed had the family been intact" (emphasis added). The guidelines "are based upon traditional custody and visitation arrangements," and are not applicable where "the parties agree to shared physical custody," the court establishes shared physical custody, or where there is split physical custody. Guideline s. II(D)(1). All this language argues against the application of the guidelines, and, indirectly, against the ordering of parental child support generally, against a parent within an intact family, where the parents are both sharing a household and together raising and supporting the children who are the subject of the support order. [Note 17]

b. Best interests of the children. The DOR makes the additional argument that the child support order offended public policy and was not consistent with our Commonwealth's policy of advancing the best interests of the children, particularly in the entering of child support orders. See G. L. c. 209C, s. 9 (c). See also id. at s. 20 (child support judgments may be modified only if modification is in child's best interests); G. L. c. 119A, s.1 (Commonwealth's policy is to direct its efforts to strengthening family life for protection and care of children and to assist use by any family of all available resources to this end); id.

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at s. 3 (when department seeks to enforce payment of arrearage for child support, it shall not seek an order which would indirectly result in decrease in amount of current support paid on behalf of child or spouse support is owed to). We agree that a child support order that further impoverishes the household of the children the order was meant to support cannot be in the best interests of those children.

There was no evidence or argument presented that the defendant was circumventing DTA regulations, or obtaining TAFDC improperly or in excess of an amount properly payable to an assistance unit with an underemployed parent. See note 13, supra. The Probate Court judge seemed to ignore the fact that the household's already modest TAFDC benefits - a maximum of $741 per month for a family of five - were already being reduced because of the defendant's earnings. Neither equity, public policy, nor statutory provisions required, in effect, a further reduction in the net TAFDC benefits by a child support order that reimbursed the DTA nearly twenty per cent of the family's already low income.

For all the foregoing reasons, we conclude that the judge abused her discretion in ordering child support. We vacate the order entered April 2, 1998, as amended. We remand this matter for entry of an order dismissing the civil contempt complaints.

So ordered.